R v Hohua

[2018] NZHC 1509

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2017-091-000902

[2018] NZHC 1509

THE QUEEN

v

JOHN SEPA HEPETEMA HOHUA

Counsel:

E M Light for Crown

I M Antunovic for Defendant

Sentence:

22 June 2018

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]Mr Hohua, you appear for a sentencing on the following charges:

(1)two charges of possession of methamphetamine for supply;1 and

(2)one charge of possession of cannabis for supply.2

[2]This morning I will:

(1)set out your offending;

1      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). Maximum penalty life imprisonment.

2      Section 6(1)(f) and (2)(c). Maximum penalty eight years’ imprisonment.

R v HOHUA [2018] NZHC 1509 [22 June 2018]

(2)outline the appropriate starting point for that offending;

(3)explain any adjustments that may be made to that starting point; and

(4)give you your final sentence.

Summary of offending

[3]        The charges result from a police operation code-named “Operation Walnut” which commenced in November 2016. That investigation targeted the commercial supply of methamphetamine in the Wellington region.

[4]        A surveillance device warrant allowed police to intercept private communications and carry out visual surveillance of two principal targets, Mr Blance and Mr Berkland. They were purchasing kilogram quantities of methamphetamine from Auckland-based suppliers. Mr Blance and Mr Berkland would then on-supply the methamphetamine to a number of associates in their distribution networks. Most of the offending took place at the Coates Street address in Tawa. Associates would then on-supply the methamphetamine further. You were one of the associates.

[5]        On 23  March  2017,  police  intercepted  three  text  messages  sent  from  Mr Berkland to Mr Blance, informing him that you were at Mr Berkland’s address to see Mr Blance. Police then visually recorded you arriving at the Coates Street address in your vehicle, followed by Mr Berkland. Police recorded your conversation with Mr Blance, which indicated that you were purchasing three ounces (84 grams) of methamphetamine, two ounces for $24,000 and one on credit. This forms the basis for the first charge of possession of methamphetamine for supply.

[6]        On 16 August 2017, police executed search warrants at your address and on your vehicle. Seven grams of dried cannabis was found in your house in a large snap lock bag, along with 21 “tinnies” (between one and two grams each). The retail price for a tinnie is about $20. The police also found $7,280 in your vehicle. You claimed ownership of the tinnies, but declined to make any further statement. This forms the basis of the charge for possession of cannabis for supply.

[7]        On 16 August 2017, you were also personally searched by police after being arrested. You had three bags of methamphetamine, containing a total of 43.4 grams, in your possession. The retail value of this amount of methamphetamine is approximately $22,000. You were also found in possession of electronic scales, a pipe used for smoking methamphetamine and hundreds of empty snap lock bags. This forms the basis of the second charge of possession of methamphetamine for supply.

Previous offending

[8]        You have 38 previous convictions, including 12 related to drug offending, four of which were only possession charges. You have previously been sentenced to imprisonment on three separate occasions for dealing in methamphetamine, most recently in 2013. Your other offending mostly comprises minor traffic offences.

Starting point

Methamphetamine charges

[9]        There is a presumption in favour of imprisonment for Class A drug dealing offending.3

[10]      The Court of Appeal’s decision in R v Fatu is the leading sentencing guideline judgment for offending involving the supply of methamphetamine.4 Your offending falls within sentencing band two, which provides that the supply of commercial quantities, between five grams and 250 grams, warrants a starting point of between three years and nine years’ imprisonment.5

[11]      In setting the appropriate starting point, I have taken into account the following aggravating features of your offending:

(1)Premeditation and planning.6 A significant degree of premeditation and planning is inherent in the sale and supply of controlled drugs.

3      Misuse of Drugs Act 1975, s 6(4)(a).

4      R v Fatu [2006] 2 NZLR 72 (CA).

5 At [34].

6      Sentencing Act 2002, s 9(i).

(2)Amount of methamphetamine.7 The total amount of methamphetamine in your possession, which you then on-supplied to your own customers, is said to be 127.4 grams. This amount sits in the middle to upper range of band two in R v Fatu.

(3)Commercial gain.8 You were found in possession of a large quantity of cash, alongside equipment typically used in the retail supply of drugs. You also had a comprehensive CCTV system with a motion sensor set up at your address. This all indicates that you were involved in the sale of methamphetamine and cannabis for profit. The value of the methamphetamine involved was approximately $50,000 to $60,000 and the value of the cannabis involved was approximately $500. Commercial gain is a relevant aggravating factor in your circumstances.

[12]      In terms of your role in the overall operation, you were not one of the principal offenders. However, you were a frequent visitor to the Coates Street address, purchased ounce amounts of methamphetamine for on-supply and had your own customer base. You can be fairly described as a mid-level dealer.9

[13]      To ensure consistency in sentencing,10 I note that four of the other co- defendants from Operation Walnut have already been sentenced:

(1)Mr McGoldrick Savaii was sentenced for methamphetamine offending involving 119 grams. He was also considered a mid-level dealer and a starting point of five years and six months’ imprisonment was adopted in his case.11

7      Sentencing Act 2002, s 8(a) and (b), R v Fatu, above n 4.

8      R v Fatu, above n 4, at [32].

9      At [31]: “Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band with the converse applying to those whose role is less significant”.

10     Sentencing Act 2002, s 8(e).

11     R v McGoldrick-Savaii [2018] NZHC 233.

(2)Ms Waiariki was sentenced for methamphetamine offending involving

36.1 grams. She was considered a street level dealer and a starting point of four years’ imprisonment was adopted in her case.12

(3)Mr Svenson was sentenced for methamphetamine offending involving

15.45 grams. He was considered a middleman between the drug dealers and the retail market and a starting point of three years’ imprisonment was adopted in that case.13

[14]I have also referred to comparable cases:

(1)In McKeown v R, a starting point of six and a half years’ imprisonment was upheld on appeal for offending involving 146 grams of methamphetamine.14

(2)In R v Tate, a starting point of five years’ imprisonment was adopted for offending involving 142 grams of methamphetamine. She was considered to be “a mule” in that particular operation.15

(3)In R v Foubister, a starting point of four years’ imprisonment was adopted for charges of conspiring to supply 140 grams of methamphetamine. Conspiracy charges typically result in a discount of about 30 per cent compared to the Fatu bands to reflect the lower maximum penalty.16 This suggests an equivalent starting point of five years and eight months’ imprisonment would have been considered appropriate in Foubister.17

(4)In R v Liu¸ a starting point of five and a half years’ imprisonment was adopted for offending involving 162 grams of methamphetamine.

12     R v Waiariki [2017] NZHC 2771.

13     R v Svenson [2017] NZDC 22165.

14     McKeown v R [2017] NZCA 99.

15     R v Tate [2016] NZHC 2522.

16     R v Clements [2016] NZHC 1387 at [31].

17     R v Foubister [2015] NZDC 26065.

Mr Liu was one of the principal offenders in a large-scale methamphetamine supply network.18

[15]      The Crown has submitted a starting point of five and a half to six years’ imprisonment. Mr Antunovic, submits a starting point of five to six years’ imprisonment is warranted.

[16]      Methamphetamine is a dreadful drug, which causes significant harm to individuals and to the community. The courts have consistently adopted starting points that reflect the social harm caused by methamphetamine. Consistent with this approach and similar authorities.19 I consider a starting point of five and a half years’ imprisonment is appropriate for the methamphetamine charges.

Other charges

[17]      The Crown submits that an uplift of six to nine months’ is appropriate to reflect the cannabis charge. Mr Antunovic submits that that would be too high an uplift. I consider that an uplift of four months is appropriate to reflect the cannabis offending and that uplift would not violate in my assessment the totality principle.

[18]This results in a total starting point of five years and 10 months’ imprisonment.

Adjustments to the starting point

Personal aggravating factors

[19]      The Crown submits that your previous convictions warrant an uplift of six months. These include three separate prison sentences for dealing in methamphetamine, as recently as 2013. In my assessment, a “significant uplift” is required to vindicate the principle of deterrence, particularly in drug dealing cases where it is the dominant sentencing principle.20 An uplift of six months is appropriate in your circumstances.

18     R v Liu [2018] NZHC 853.

19     R v McGoldrick-Savaii, above n 11; and McKeown v R, above n 14.

20     R v Arthur [2005] NZLR 739 (CA) at [26].

Personal mitigating factors

[20]      I record the references in the PAC Report to your addiction and dependency upon methamphetamine and your desire to take rehabilitative steps. These observations in the PAC Report are reinforced in Mr Duncan’s comprehensive report. I also record your impressive letter of contrition and your recorded desire to address your profound addiction. The most generous discount that I can give to reflect your personal mitigating circumstances is six months and that is the discount which I will provide.

Guilty plea

[21]      Your guilty plea was not made at the earliest opportunity, but it was still months before the trial.   In  these circumstances,  I will give  you a discount slightly over   20 per cent which I consider to be appropriate.21

Result

[22]Mr Hohua, could you now please stand.

[23]      I am sentencing you to four years and six months’ imprisonment in relation to both methamphetamine charges. In relation to the cannabis charge, I impose a sentence of one year imprisonment. Those sentences are all to be served concurrently.

[24]      I make the destruction orders sought by the police and the forfeiture of the Mitsubishi motor vehicle and the $7,280 seized by the police.

[25]You may now stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington

I M Antunovic, Wellington for Defendant

21     R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.